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Registration Counts Q&A


On Wednesday, April 21, 2010, the American Society of Media Photographers presented an important all-day symposium at the Times Center in New York, entitled Copyright and the New Economy: Issues & Trends Facing Visual Artists. A panel of thought leaders representing different industries and points of view on copyright explored significant issues, challenges and trends of this issue.

 

The ASMP’s executive director, Eugene Mopsik, described the symposium’s purpose as “intending to seek sustainable business solutions by engaging in an important conversation about economic shifts in the industry, the current state of copyright and what the future holds for those who produce and use visual works.”

 

In conjunction with this event, we posed six questions about copyright to panelists David Carson, Chase Jarvis, Lawrence Lessig, Liz Ordoñez, William Patry*, Victor Perlman, Darrell Perry and Jeff Sedlik. An abbreviated version of the panelists’ responses, published in the print edition of the ASMP Bulletin, offered a brief background on the positions and ideas of each speaker.

* William Patry did not participate in the panel.

 

This full version of the Q&A accompanies the videos of the live panel discussion on the ASMP Web site.

 

In addition to the Registration Counts symposium, the ASMP is currently offering a nationwide series of free copyright registration workshops, geared toward teaching photographers about the importance of copyright registration, common mistakes and how to register works with a step-by-step guide. For more on these workshops, visit www.asmp.org/asmp-seminar-registration-workshop.

 

David Carson


Photo by Cecelia Rogers

ASMP Bulletin: What is your current job function and your overall position on copyright?

David Carson: As general counsel of the Copyright Office, I’m a principal legal advisor to the Register of Copyrights (the director of the Copyright Office). I’m responsible for directing the Office’s litigation and for the Office’s regulatory activity. I advise Congress on matters of copyright law and policy. I also advise other agencies of the federal government on copyright matters. I believe in copyright.

 

ASMP: What does the slogan “Registration Counts” mean to you?

DC: For the individual photographer, registration counts because when you register the copyright in your work, you obtain certain advantages in the event that somebody infringes your copyright. Without a copyright registration, you won’t be eligible for an award of statutory damages or attorney’s fees. For U.S. works, you need a copyright registration in order to file an infringement suit. And if you have a copyright registration certificate, the defendant will have to prove that your copyright is invalid. For the public at large (and for you), registration counts because it means that there will be a public record that you are the author of the work that you registered.

 

ASMP: What do you feel are the most significant challenges facing visual artists in the current copyright and licensing landscape?

DC: I suspect that the most significant challenge for most visual artists is to make themselves and their work known. As we have worked on the orphan works problem, we’ve found that visual artists may be the creators whose works are most likely to be orphaned, because it’s not always easy to figure out who was the creator of a particular photograph or other work of the visual arts. Another significant challenge is the ease with which works of authorship can be copied and reused, thanks to technological advances that can be of tremendous benefit to creators but can also make it easy to engage in infringement.

 

Chase Jarvis


© 2009 chasejarvis.com

ASMP Bulletin: What is your current job function and your overall position on copyright?

Chase Jarvis: I’m a photographer and a director. I’m a fine artist but I also create campaigns for a wide variety of brands focused on popular culture and active lifestyle niches. I’ve never before articulated an overall position on copyright. But if I had to take a stab at something so broad sweeping, it would be that — for the things I create — I should be able to decide the who, what, how, when and where they are displayed, used or shared. I believe that the current copyright laws are antiquated and insufficient for dealing with the digital age — in spirit and in the practical realm — and that we must collectively rethink the laws in the context of the new fabric of our digital lives.

 

ASMP: What does the slogan “Registration Counts” mean to you?

CJ: It means that registering your creative works has value.

 

ASMP: From the perspective of copyright and the licensing of creative content, do you feel that any distinctions can be made between visual artists and the authors of written works?

CJ: On the surface it seems like a clearly articulated possibility. However, it seems quite possible that in this current era where mixed media plays such a large role that attempting to draw that line might get sticky.

 

ASMP: What do you feel are the most significant challenges facing visual artists in the current copyright and licensing landscape?

CJ: 1) How do we hold on to some important precedents that protect our rights while simultaneously rethinking and reshaping the entire landscape and paradigm of copyright?
2) How do we let information be free when we want it to be free, and not free when we don’t want it to?
3) How do we simultaneously enforce laws that restrict use and encourage the free flow of information?

 

ASMP: What do you feel are the most significant challenges currently facing those seeking to make use of creative content?

CJ: 1) Knowing what’s fair game (fair use) and what’s not.
2) Knowing the laws, codes of ethics and standards for working with copyrighted material.
3) Caring enough about the system and the process to respect it.

 

ASMP: Is there any one factor or trend that you see as having the most impact on copyright and licensing in its current state?

CJ: No, there are too many to pin down any single factor.

 

ASMP: Do you have any specific thoughts about a practical, and sustainable, model for the future of copyright and licensing?

CJ: Perhaps after the panel…

 

Lawrence Lessig

ASMP Bulletin: What is your current job function and your overall position on copyright?

Lawrence Lessig: I am a professor of law at Harvard. I believe an efficient and balanced system of copyright is essential to culture.

 

ASMP: What does the slogan “Registration Counts” mean to you?

LL: That means systems such as registration might help a system of copyright become more efficient and better serve the interests of artists and the public.

 

ASMP: From the perspective of copyright and the licensing of creative content, do you feel that any distinctions can be made between visual artists and the authors of written works?

LL: The tradition of sharing without securing permission is more well established with written works than visual works.

 

ASMP: What do you feel are the most significant challenges facing visual artists in the current copyright and licensing landscape?

LL: To craft the line between contexts where proprietary control makes sense and where it doesn’t. Too much and too little are twin enemies.

 

ASMP: What do you feel are the most significant challenges currently facing those seeking to make use of creative content?

LL: The embarrassingly inefficient system of copyright.

 

ASMP: Is there any one factor or trend that you see as having the most impact on copyright and licensing in its current state?

LL: The explosion of amateur creativity.

 

ASMP: Do you have any specific thoughts about a practical, and sustainable, model for the future of copyright and licensing?

LL: I know only how it begins — by making clear who owns what.

 

Liz Ordoñez


© 2010 Liz Ordoñez

ASMP Bulletin: What is your current job function and your overall position on copyright?

Liz Ordoñez: I’m a Florida-based photographer specializing in residential architecture and interior design. As a photographer earning a living from licensing images, I think it is very important for all artists and users of creative content to support copyright law.

 

ASMP: What does the slogan “Registration Counts” mean to you?

LO: Registration has translated into several legal advantages for me. It has established a public record of the copyright claim, it was required before filing infringement lawsuits, it may be used as prima facie evidence in court, and because of timely registration before infringement, statutory damages and attorney’s fees were awarded in our favor.

 

ASMP: From the perspective of copyright and the licensing of creative content, do you feel that any distinctions can be made between visual artists and the authors of written works?

LO: According to my (layman’s) understanding of copyright law, no distinction is made between these two.

 

ASMP: What do you feel are the most significant challenges facing visual artists in the current copyright and licensing landscape?

LO: 1. Ourselves: Convincing artists to subscribe to a particular standard or to change current practices is like herding cats. Can you imagine a day void of visual imagery? Unthinkable! Visual content is in demand like never before, just not in the ways we’re accustomed. Life as we knew it will never be the same. At times, I’m overwhelmed by the quantity and rate at which things are changing. But we must keep watching for ways to meet the market’s new needs, if we want to succeed. This is not the season to hunker down and keep making the same old widget.

 

2. Lags in technology and ways to safeguard creator’s content. There is an area of opportunity for the person/ company who can meet these needs.

 

3. Lack of successful avenues to communicate with those seeking use of creative content; to communicate expectations, challenges and goals and to collaborate on finding mutually beneficial solutions.

 

4. Lack of understanding of the law and misinformation about what it protects and what it encourages. Many equate “freedom to share” with freedom to take what you want. If the artist is not able to choose whether or not to extend free use rights to everyone, then that is not “freedom” at all.

 

ASMP: What do you feel are the most significant challenges currently facing those seeking to make use of creative content?

LO: My insight in this area is limited, but I can understand why some users of creative content side-step licensing agreements. There are few if any standards followed by artists. Some artists require written agreements, others don’t. Some grant unlimited use rights, others grant only specific rights being paid for, and yet others allow clients to do whatever they want with their creative content.

 

ASMP: Is there any one factor or trend that you see as having the most impact on copyright and licensing in its current state?

LO: The ignorance of, or apathy to copyright law and intellectual property rights by persons with instant access to creative content through the Internet.

 

ASMP: Do you have any specific thoughts about a practical, and sustainable, model for the future of copyright and licensing?

LO: We must go back to business economics: Managing a business that is solvent and profitable depends largely on how well we meet the market’s needs. The how, where, when and why of our creative process is changing all the time, but what doesn’t change are the laws and basic principles of economics. We must keep our finger on the pulse of today’s micro- and macro-economics landscape. When the market is unwilling or unable to pay enough to cover overhead and a reasonable paycheck, it’s time to turn the page. Artists must make it their business to support and promote an increased awareness about copyright law and why it is important to the availability and use of creative content. Maintaining ownership of our IP rights is critical — especially with the onslaught of IP “rights grabs” and given the current economic climate. Without the value and benefits of owning and controlling our IP rights, we have no economic incentive to increase its value. If anyone and everyone can use the work, then nobody really owns it. There are no fees charged for the use and therefore no way of calculating its value.

 

William Patry*


© 2009 Stephen Aviano

ASMP Bulletin: What is your current job function and your overall position on copyright.

William Patry: I am senior copyright counsel at Google, Inc., in its New York City office. I am involved in the ways copyright affects the company, including new product design, litigation, and domestic and international policy.

 

ASMP: What does the slogan “Registration Counts” mean to you?

WP: I didn’t create it and so don’t know.

 

ASMP: From the perspective of copyright and the licensing of creative content, do you feel that any distinctions can be made between visual artists and the authors of written works?

WP: Different types of works have different markets and ownership issues, and licensing has to take into account these differences. If I write a traditional legal book, the market is fairly set, whereas for visual works, the possible markets and uses are much vaster.

 

ASMP: What do you feel are the most significant challenges facing visual artists in the current copyright and licensing landscape?

WP: How to get over the idea that copyright is about control rather than about being paid.

 

ASMP: What do you feel are the most significant challenges currently facing those seeking to make use of creative content?

WP: How to contact the licensor.

 

ASMP: Is there any one factor or trend that you see as having the most impact on copyright and licensing in its current state?

WP: I think Creative Commons was a huge, positive step forward in breaking out of the traditional mold of face-to-face negotiations, and I would think that more can be done in the area of collective administration of rights.

 

ASMP: Do you have any specific thoughts about a practical, and sustainable, model for the future of copyright and licensing?

WP: Make it easy.

 

* William Patry did not participate in the panel on April 21.

 

Victor Perlman


© 2010 Eugene Mopsik

ASMP Bulletin: What is your current job function and your overall position on copyright?

Victor Perlman: I am the ASMP’s general counsel and managing director. In practical terms, that means that I am in charge of the ASMP’s legal and advocacy matters, and I serve as second-in-command of the ASMP’s operations. My overall position on copyright is that it must be advanced, preserved and protected for the benefit of the ASMP’s 7,000 members and the public. Copyright law was created to advance the interests of both the creators and the users of copyrighted materials. If copyrights are eroded, both groups will be harmed.

 

ASMP: What does the slogan Registration Counts mean to you?

VP: I take it literally: Registration is crucial to the protection of the creator’s copyright interests. Without registration, copyrights are virtually unenforceable.

 

ASMP: From the perspective of copyright and the licensing of creative content, do you feel that any distinctions can be made between visual artists and the authors of written works?

VP: Visual content is uniquely vulnerable to infringement, particularly in a digital environment. Infringers of other kinds of materials often use only part of a work, whereas infringers of visual materials almost always steal the entire work. Additionally, search engines for detecting infringements are mostly text-based, and those search engines that use visual recognition technology are fairly new and, thus, much less advanced and effective. Exacerbating the situation is the fact that photographers create far more works than other kinds of creators. This makes the numbers of their works that are infringed far greater, and therefore, their copyrights are far more expensive and time-consuming to protect and enforce.

 

ASMP: What do you feel are the most significant challenges facing visual artists in the current copyright and licensing landscape?

VP: Where to begin? The rights of visual artists are under attack on all fronts. Technology has made it cheap and easy to create, not copies, but duplicate originals. The Internet culture has fostered a mind-set in the user community that, if you can copy and use a work, it is OK to do it. There is a sense in the user community that it is not just permissible but that it is their right. On the business front, consolidation in the marketplace has drastically decreased competition on the client side, resulting in reduced compensation for photographers and demands by clients for the grant of increased rights. Add to this the fact that copyright litigation is phenomenally expensive, making it unaffordable to prosecute all but the most expansive and profitable infringements.

 

ASMP: What do you feel are the most significant challenges currently facing those seeking to make use of creative content?

VP: Protecting copyrights in light of the factors mentioned in the previous answer.

 

ASMP: Is there any one factor or trend that you see as having the most impact on copyright and licensing in its current state?

VP: The apparent cultural belief that infringement is quite OK.

 

ASMP: Do you have any specific thoughts about a practical, and sustainable, model for the future of copyright and licensing?

VP: We need to think out of the box. The world has changed and won’t go back. We need to make it inexpensive and easy for users to access our content legally, by paying rather than stealing. We need to consider all possible approaches, including collective and compulsory licensing.

 

Darrell Perry


© 2006 David M. Russell

ASMP Bulletin: What is your current job function and your overall position on copyright?

Darrell Perry: I work primarily as a freelance photo editor and still photography producer. I handle, on a per-project basis, the rights and permissions for usage of images from various sources. This is mainly in the print and Web media spheres. I believe that copyright law is clear-cut and traditional but can be bent in times of high pressure and high news value. Attribution is all important, and the option for negotiation of compensation is always on the table.

 

ASMP: What does the slogan “Registration Counts” mean to you?

DP: The responsibility of tagging, embedding and registering one’s ownership and copyright is on the owner and creator, which in turn sets up reasonable expectations of attribution and compensation on users and publishers.

 

ASMP: From the perspective of copyright and the licensing of creative content, do you feel that any distinctions can be made between visual artists and the authors of written works?

DP: There has been a long tradition of quoting, footnoting and attribution in written works. I am thinking that visual creators may be moving slowly to this model.

 

ASMP: What do you feel are the most significant challenges facing visual artists in the current copyright and licensing landscape?

DP: Technology, along with the ease and speed of appropriating images and the ability to change and incorporate images, makes it difficult for content creators to police and monitor.

 

ASMP: What do you feel are the most significant challenges currently facing those seeking to make use of creative content?

DP: Rising costs, confusion over terms of usage, no real benchmarks or applicable scales of compensation.

 

ASMP: Is there any one factor or trend that you see as having the most impact on copyright and licensing in its current state?

DP: The ability of technology to allow images to be marked, embedded and tagged to control their usage.

 

ASMP: Do you have any specific thoughts about a practical, and sustainable, model for the future of copyright and licensing?

DP: There is a lot of room for debate. It may have to continue to be worked out on an artist and user basis, case by case.

 

Jeff Sedlik


© 2010 Sedlik Studio

ASMP Bulletin: What is your current job function and your overall position on copyright?

Jeff Sedlik: I am a photographer, former president of the Advertising Photographers of America and current president of the PLUS Coalition. I run a publishing company, provide forensic expert witness services and teach copyright law at the Art Center College of Design. The practical application and enforcement of copyrights must balance the rights of creators with benefits to society. This is the foundation of copyright law.

 

ASMP: What does the slogan “Registration Counts” mean to you?

JS: In the U.S.A., photographers receive critical enhanced infringement remedies by registering their copyrights with the U.S. Copyright Office. Photographers and image users should not confuse the term registration with copyrighting, and should understand that photographs are protected by copyright without registration. However, in the real-world application of copyright, a photographer’s ability to protect and enforce copyright often hinges on whether or not the photograph has been registered and when that registration occurred. So while registration is not required to “copyright” an image, Registration Counts!

 

ASMP: From the perspective of copyright and the licensing of creative content, do you feel that any distinctions can be made between visual artists and the authors of written works?

JS: In searching for a solution to the challenges confronting photographers, it is a huge mistake to rely upon comparisons between the licensing of photography and other types of creative content. The means by which each type of content is distributed, licensed, consumed and otherwise exploited and managed varies widely and is often fundamentally distinct. Licensing and rights management schemes and practices employed for any one type of content are rarely directly (or even indirectly) comparable to those of other types of content. The means of consumption is perhaps the most critical issue frustrating any attempt at an apples-to-apples comparison, but other issues, such as the existence of content-specific laws and regulations, also have significant bearing on such comparisons. To solve the challenges facing photographers and the users of photography, we must focus on photography and avoid the temptation to invent parallels.

 

ASMP: What do you feel are the most significant challenges facing visual artists in the current copyright and licensing landscape?

JS: 1) Photographers are and have always been their own worst enemies, and yet they consistently blame others for their woes. I call this SAS, the Starving Artist Syndrome. Many photographers fail to make the effort to learn and employ even the most fundamental principles of business management, let alone image licensing. We are artists. But we are also professionals. Widespread failure to understand and embrace this basic concept is, without a doubt, the most serious challenge facing photographers.

 

2) Rapid advances in technologies used for capturing, editing, managing and distributing photographs have far outpaced advances in technology used to license and mange image rights. In the digital age, our clients are drowning in images and liability. Photographers and stock agencies have a responsibility to ensure that their clients have ready access to rights information described using industry standard terminology, and to provide for machine interpretable licenses, allowing clients to effectively manage images and avoid infringement. The lack of this standardization has driven demand for copyright transfers and work-made-for-hire terms to an all-time high.

 

3) The culture of “free” has grown and is now so pervasive that the public- — especially those in their teens and twenties — expects free access to/usage of anything in digital form. From a small business perspective, the jury is still out on “free.” The business graveyard is littered with the tombstones of hundreds of thousands of startups that have come and gone as the result of basing their business plans on “free.” Where did they go wrong? Well, “free” doesn’t work for all products and services, nor does “free” work for just any type or size of business. “Free” works for some businesses selling certain types of products or services, where those businesses are able to display or distribute free content (a) as a means of generating large number of impressions of paid advertising content placed adjacent to free content; or (b) where the free content belongs to others and there is little or no cost associated with obtaining and offering that content; or (c) as a loss leader for extraordinarily compelling upsell offers designed to generate orders for paid products or services which can be readily fulfilled. Unfortunately, of all businesses on this planet, photographers are in the worst position to successfully leverage “free.” Photographers have neither “a,” nor “b,” nor “c.” Most don’t even have a business plan. I frequently hear photographers proclaim “evolve or die,” and they are right. But “evolve and die” is not an effective strategy. Just ask a dodo.

 

4) Advances in technology have removed the previous barriers to entry to the photography industry by making it possible for anyone with a camera to create and offer images across the global marketplace. Hundreds of thousands of new photographers have entered that marketplace, most employed in other jobs and working part-time at photography to supplement their income with image licensing royalties. Some full-time professional photographers, scrambling to jump to a “new business model” (and for some, pretty much any new business model will do), are transitioning to microstock to replace the income previously generated by assignment and other stock sales. For a few of them — those who have the resources, staff, experience and business acumen necessary to consistently produce high volumes of fresh content — this strategy may pan out quite well. For the rest of full-time pro photographers — those who have ongoing overhead, no employment revenue stream, no capability to sustain continuous high volume production, and those who base their decisions not on business plans but on desperation — they’re just jumping from the frying pan into the fire.

 

5) The re-introduction and passage of an orphan works amendment to copyright law will have an incredibly significant impact on all visual artists. If the orphan works amendment is re-introduced and passed with language similar to the most recent version of the bill as passed by the Senate, anyone will be able to legally use and exploit any photograph for almost any purpose — including all commercial uses, other than placement on a “useful article” like a coffee mug or keychain — without advance authorization or payment to the copyright owner, simply by searching for, and failing to find, the photographer. This applies not only to photographs created years ago, but also to photographs created today. A photographer will have no right to stop an infringer from using a photograph, and no right to file a copyright infringement claim (even if the work is registered), provided that the infringer pays the photographer an amount that the infringer believes is reasonable. Past legislation is problematic. Orphan works legislation is needed, and should balance the needs of society with the rights of creators. Finding that balance is the tricky part.

 

6) Keeping pace with evolving technologies and leveraging them in our businesses will require a tremendous ongoing investment of time and resources, and constant re-education in the technical and creative aspects of our craft. Video/motion is a prime example. As home Internet bandwidth continues to improve, the need for motion on the web will skyrocket and may eclipse the need for still images. Video is the latest buzzword on photographers’ lips and many are rushing to attend workshops and purchase gear. The challenge faced by photographers moving into motion or video: photography is to video what sketching is to sculpture. Reading a camera manual or attending a video workshop doesn’t make you a videographer. It makes you a photographer who knows what buttons to press in order to capture video and audio. As more and more photographers attempt to move into the motion marketplace, competition will increase, and the photographers who have studied cinematography and film will control the marketplace, while others will find themselves in over their heads.

 

ASMP: What do you feel are the most significant challenges currently facing those seeking to make use of creative content?

JS: 1) Separating the wheat from the chaff. Efficiently identifying relevant, high-quality content in a vast sea of mediocrity.

 

2) Digital asset management and intellectual property management: effectively and efficiently managing and leveraging photographs and other licensed assets while minimizing liability for unauthorized usage.

 

3) Identifying rights holders for images. This is especially significant for museums, libraries, researchers, documentary filmmakers.

 

ASMP: Is there any one factor or trend that you see as having the most impact on copyright and licensing in its current state?

JS: See above.

 

ASMP: Do you have any specific thoughts about a practical, and sustainable, model for the future of copyright and licensing?

JS: The identification of rights holders and photographs is the key to establishing new, sustainable models. With industry standards for identification standards in place, compensation to photographers can be based upon impressions, clicks and other events, and an efficient, accurate royalty framework for photographers may emerge.